Superior Films, Inc. v. Department of Ed., Division of Film Censorship

• Citation: 112 N.E.2d 311,50 O.O. 305,159 Ohio St. 315
• Decision Date: 29 April 1953
• Docket Number: 33282,Nos. 33265,33283,s. 33265
• Parties: , 50 O.O. 305 SUPERIOR FILMS, Inc. v. DEPARTMENT OF EDUCATION, DIVISION OF FILM CENSORSHIP. STATE ex rel. CLASSIC PICTURES, Inc. v. HISSONG. CLASSIC PICTURES, Inc. v. DEPARTMENT OF EDUCATION.
• Court: United States State Supreme Court of Ohio

Page 315

159 Ohio St. 315

112 N.E.2d 311, 50 O.O. 305

SUPERIOR FILMS, Inc. v. DEPARTMENT OF EDUCATION, DIVISION OF FILM CENSORSHIP.

STATE ex rel. CLASSIC PICTURES, Inc. v. HISSONG.

CLASSIC PICTURES, Inc. v. DEPARTMENT OF EDUCATION.

Nos. 33265, 33282, 33283.

Supreme Court of Ohio.

April 29, 1953.

Syllabus by the Court.

1. Although expression by means of motion pictures is included within the freedom of speech and the press guaranty of the First Amendment to the federal Constitution, it does not follow that such Constitution guarantees absolute freedom to exhibit motion pictures of every kind at all times and in all places.

2. Legislative power is not delegated, and the guaranty of freedom of speech and the press of the First Amendment to the federal Constitution and Section 11, Article I of the Constitution of Ohio, is not violated, by Sections 154-47 to 154-47i, inclusive, General Code, creating a board of censors which is required to examine and censor prior to exhibition motion picture films intended to be publicly exhibited and displayed in the state, and to pass and approve only such films as are, in its judgment, of a moral, educational or amusing and harmless character.

3. The statutory criterion, for the examination and approval by the Division of Film Censorship of moving picture films for public exhibition in the state, that such films shall be of a 'moral, educational or amusing and harmless character,' is sufficiently clear, definite and comprehensive.

4. The fees required by statute for the inspection and censorship of moving picture films to be publicly exhibited within the state, even though such fees exceed to some extent the necessary cost for making the inspection, constitute license fees and not a tax and are, therefore, not discriminatory or unlawful.

Petitions to vacate order.

In Mandamus.

These three cases were heard and considered together since the same or similar questions are involved.

In case No. 33265, the plaintiff was the producer and is the owner of a motion picture entitled 'M.' On September 11, 1952, pursuant to the provisions of Sections 154-47 to 154-47i, inclusive, General Code, the plaintiff submitted such motion picture to the Division of Film Censorship of the Department of Education for censorship and approval. On September 16, 1952, the division issued a certificate rejecting the film for distribution and exhibition in the state of Ohio, the grounds of rejection being stated as 'on account of being harmful.'

On September 25, 1952, the plaintiff commenced this action by filing its petition in this court pursuant to Section 154-47h, General Code, and later filed its amended petition seeking to have this court vacate the order of rejection. In its amended petition the plaintiff alleges that the motion picture in question 'artistically and dramatically publishes important social problems and either clearly suggest solutions therefor or so dramatically presents each such problem that anyone having an opportunity to see the picture will become vitally interested in such problems and will more readily respond to efforts at a solution thereof in the community in which he lives'; that the statutes in question constitute on their face, as applied to the plaintiff's motion picture, 'M,' a prior restraint and censorship for which the standards of criteria are indefinite and vague and are repugnant to the First and Fourteenth Amendments to the Constitution of the United States and to Sections 2 and 11, Article I of the Constitution of Ohio; and that the statutes, to the extent that they require payment of a fee prior to the distribution and exhibition of motion pictures, are unconstitutional and void.

The answer of the defendant admits that on September 11, 1952, the plaintiff submitted its motion picture, 'M,' to the defendant for censorship accompanied by the necessary fee, and that on September 16, 1952, defendant rejected the film for distribution and exhibition in the state of Ohio, but denies all other allegations. The case was submitted on a stipulation of facts.

Case No. 33282 is an action in mandamus by Classic Pictures, Inc., to require the respondent to accept for censorship Classic's motion picture, 'Native Son,' pursuant to the provisions of Sections 154-47 to 154-47i, inclusive, General Code. Respondent's answer alleges that he refused to censor this picture because respondent had previously viewed and considered this motion picture on the application of Classic on three previous occasions after cuts and deletions had been made, and that he had issued a certificate of rejection of the motion picture on November 2, 1951, for the reason, as stated in such certificate, that it was 'harmful: becauce--contributes to racial misunderstanding, presenting situations undesirable to the mutual interests of both races; against public interest in undermining confidence that justice can be carried out; presents racial frictions at a time when all groups should be united against everything that is subversive.'

The answer alleges also that Classic failed to appeal from such rejection as provided by law, but on July 22, 1952, filed a petition in this court for a review of the order of rejection, and that on motion of respondent such petition was dismissed by the court on October 15, 1952, 158 Ohio St. 229, 108 N.E.2d 319. The facts are undisputed.

Case No. 33283 is an action in this court to set aside the order, referred to in case No. 33282, refusing to review the motion picture, and to require the issuance of a certificate approving the same, or in the alternative to direct the defendant to further review the motion picture, or in the alternative to declare 'Section 154-47 and subsections 154-47a through 154-47i of the General Code of Ohio, and each of them, unconstitutional and void.'

The answer of the defendant alleges facts substantially the same as in the answer in case No. 33282.

Classic in its brief describes the picture film, 'Native Son,' as follows:

'* * * The action of the story takes place in Chicago, and part of the picture was filmed there. The role of the central character, Bigger Thomas, an embittered young negro, is acted by Richard Wright, the author of the book. Bigger accidentally kills a white girl, Mary Dalton, and after disposing of her body, attempts to extort money from her parents by means of a ransom note. After the murder is discovered, Bigger goes into hiding with his sweetheart, Bessie Mears, and immediately before his capture, murders Bessie in the mistaken belief that she betrayed him. The picture ends with a scene between Bigger and his lawyer, in which it is made clear that Bigger will be electrocuted for his crimes.'

No record has been made in this case. Classic seeks to treat the refusal of the defendant to issue a certificate as a final order and to obtain its vacation.

Wright, Harlor, Purpus, Morris & Arnold, Columbus, for plaintiff Superior Films, Inc.

Brownfield, Ford & Douglas, C. William

Malone, Columbus, and Ephraim S. London, New York City, for Classic Pictures, Inc.

C. William O'Neill, Atty. Gen., Robert E. Leach and Gwynne B. Myers, Columbus, for defendants and respondent.

HART, Judge.

The plaintiff in case No. 33265 submits that the question presented is whether 'motion pictures, as distinguished from other media of human expression, may be subjected to censorship in advance of publication; or, whether motion pictures, along with such other media, are entitled to protection from all restraint except such as is incident to responsibility for abuse.'

On the other hand, the defendant states his basic position as follows:

'The impact of the motion picture, the unrestricted audience, and the subject matter of those films which experience shows have been rejected, taken together present an area of proper interest for Ohio and an area which can be constitutionally regulated. The standards of regulation under this statute have acquired in this court and through administrative experience a definiteness which complies with procedural due process of law. The Division of Film Censorship acted reasonably and within the proper bounds of its discretion in rejecting the motion picture 'M.' The question of the tax or license characteristics of the fee provided is regarded as a separate and collateral question. It is plainly a license fee though some surplus revenue has been produced. Irrespective of that, however, plaintiff voluntarily paid the fee and by all ordinary principles of law should be estopped from making his voluntary act the basis for a constitutional challenge.'

In 1913 the Ohio General Assembly dopted a motion picture censorship act providing for a Board of Censors to operate under the authority and supervision of the Industrial Commission. Section 871-48, General Code, a part of the act, provided that 'It shall be the duty of the board of censors to examine and censor as herein provided, all motion picture films to be publicly exhibited and displayed in the state of Ohio'.

Section 871-49 provided that 'Only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character shall be passed and approved by such board.'

In 1935, the censorship body was designated as the 'division of film censorship of the department of education' 116 Ohio Laws, 100. In 1943, Section 871-48, General Code, became present Section 154-47, General Code, and Section 871-49, General Code, became present Section 154-47b, General Code, 120 Ohio Laws, 481, but the language of the statutes as above quoted has remained practically the same.

In 1914, the constitutionality of the Ohio censorship act, as above noted, was under consideration by the Supreme Court of the United States in the case of Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230, 35 S.Ct. 387, 390, 59 L.Ed. 552, Ann.Cas.1916C, 296.

In that case the act was attacked from three standpoints as...